King Trucking Company

National Labor Relations Board - Board Decisions

Dec 16, 1981

259 N.L.R.B. 725 (N.L.R.B. 1981)

KING TRUCKING COMPANY 725
King Trucking Company and James Morgan and ORDER
Ernest Centers. Cases 9-CA-15335 and 9-CA-
Er t Cente.15462 - ad 9 - Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
December 16, 1981 lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-DECISION AND ORDER fled below, and hereby orders that the Respondent,
BY MEMBERS FANNING, JENKINS, AND King Trucking Company, Burlington, Kentucky,
ZIMMERMAN shall take the action set forth in said recommended
Order, as so modified:
On May 11, 1981, Administrative Law Judge 1. Substitute the following paragraph for para-
James P. Timony issued the attached Decision in graphs l(a) and (b):
this proceeding. Thereafter, Respondent and the "(a) Discharging or otherise discouraging em-
General Counsel filed exceptions and supporting ployees for their support of Truckdrivers, Chauf-
briefs. feurs and Helpers, Local Union No. 100, an affili-
Pursuant to the provisions of Section 3(b) of the ate of the International Brotherhood of Teamsters,
National Labor Relations Act, as amended, the Na- Chauffeurs, Warehousemen and Helpers of Amer-
tional Labor Relations Board has delegated its au- ica, or any other labor organization of its employ-
thority in this proceeding to a three-member panel. ees, by discriminating against them for engaging in
The Board has considered the record and the at- protected union activity
tached Decision in light of the exceptions and 2. Insert the following as new paragraph l(b):
briefs and has decided to affirm the rulings, find- (b) Assaulting employees in violation of Section
ings,' and conclusions2 of the Administrative Law 8(a)(1) of the Act because they have engaged in
Judge and to adopt his recommended Order, as union act
modified herein. 3 union activity."3. Substitute the attached notice for that of the
Respondent and the General Counsel have excepted to certain credi- Administrative Law Judge.
bility findings made by the Administrative Law Judge. It is the Board's
established respect to credibility unless the clear preponderance of all of violated Sec. 8(aXl) of the Act and we shall amend the Administrative
the relevant evidence convinces us that the resolutions are incorrect. Law Judge's recommended Order and notice accordingly.
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no AON
basis for reversing his findings. APPENDIX
We agree with the Administrative Law Judge's findings that James
Morgan was not discharged. In so doing we disavow the Administrative NOTICE To EMPLOYEES
Law Judge's conclusion that Morgan was not an employee of Respond- P T OR R T
ent. Morgan was a part-time employee who had worked for Respondent POSTED BY ORDER OF THE
in the past. The established practice was for Morgan, because of a corm- NATIONAL LABOR RELATIONS BOARD
munication problem, to contact Respondent when he needed work. On A Agency of the United States Government
March 26 Morgan contacted Respondent and was assigned a route.
While fueling his truck at the truck stop, he met the other drivers who
were discussing the Swigert incident, and decided to return to the com- After a hearing at which all sides had an opportu-
pany yard with them to discuss the matter with Respondent's president,
King. This meeting lasted several hours and at its conclusion the drivers nity to present evidence and state their positions,
decided it was too late to begin their routes. When Morgan informed the National Labor Relations Board found that we
King that he was not going out on his route, King requested the truck have violated the National Labor Relations Act, as
keys. Morgan asked if he was going to be fired and King replied, "no."
Morgan never contacted King after March 26. For that reason the Ad- amended, and has ordered us to post this notice.
ministrative Law Judge found that Morgan was not discharged but rather
voluntarily discontinued the established employment arrangement. We The Act gives employees the following rights:
agree.
' We adopt the Administrative Law Judge's finding based on credibil. To engage in self-organization
ity that Respondent by Meade King did not threaten plant closure when To form, join, or assist any union
he talked to Otis Mefford during the organizational campaign. We there- To bargain collectively through repre-
fore find it unnecessary to decide Meade King's status with Respondent.
Under the section entitled "Discussion" the Administrative Law Judge sentatives of their own choice
apparently buttressed his finding that Respondent was hostile to the To engage in activities together for the
Union with an incident which took place between Combs and driver Jim.
Hudson. Although we adopt the Administrative Law Judge's finding that purpose of collective bargaining or other
Combs discharged Swigert for antiunion purposes, we disavow any infer- mutual aid or protection
ence drawn from the incident in which Combs excluded Hudson from To refrain from the exercise of any or all
the "shop."
' The complaint alleged that Respondent, by Supervisor Combs, violat- such activities.
ed Sec. 8(aXI) of the Act by assaulting employee Swigert during an un-
lawful discharge. Although the Administrative Law Judge found that WE WILL NOT discharge or otherwise dis-
Swigert was assaulted, he failed to make a finding as to whether such courage employees for their support of Truck-
conduct violated Sec. 8(aXI) of the Act. The General Counsel excepts to drivers Chauffeurs and Helpers Local Union
this omission. We find that Combs' assault of Swigert, in the context of
and related to his unlawful discharge and because of his union activity, No. 100, an affiliate of the International Broth-
259 NLRB No. 79
15462 rs a t t ecti (c) f t ati al r
DECISION/tK ANDT^ ORDERT COOrder t i i t ti , i f l , r r t t t es e t,
On. May 1981 Administrative r, i i :
, tive ge i1
:
therwis

i l , l i . , ffili
ti ti l
l l
i l l i ti l
i i l i i
i ,
i i li ti ll i
i i t f i li - lti ti
2 i e
' * „-„,„.„
modified herein union aiviy.
ti
)(
ts ),
fi
O
spond-PncTcn nv nnpB rF MR
spondentrPSTED

r . e c of the nited States overn ent
A

' , , .. i . .. .1. * _ *.*
P St
e
t t t i t is r t , i re este t e tr c i l t t ati al a r elations ct, as
li , "no."
Or
. , , ., ^ 11 * * i..
The g
T naei efognzto
I -
T o Self- r
O U i
i . there-To h rpain cnllertiveiv thrnnfh renre-
° bargain colecively through repre
is i
til t t in ti iti s t t r f r the
„ .. , * * .,
Fin i purpose Colle t O Ot
O
l s fro o refrain fro the exercise of any or all."n..
I
l)
O Other
O
l * _ i..er -„ ul_-- T .^l IT -
i drivers, Chauffeurs and Helpers, Local Union

s
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erhood of Teamsters, Chauffeurs, Warehouse- FINDINGS OF FACT
men and Helpers of America, or any otherJURISDICTION
labor organization of its employees, by dis-
criminating against them for engaging in pro- King Trucking Company is a partnership, with an
tected union activity. office and place of business in Burlington, Kentucky, en-
WE WILL NOT assault employees because gaged in the operation of a trucking service, providing
they engage in union activity. services valued in excess of $50,000. The company
admits and I find that it is an employer engaged in com-
WE WILL NOT in any like or related mannerinter E WILL NOT ri any like or related anner merce within the meaning of Section 2(2), (6), and (7) of
interfere with, restrain, or coerce our employ- the Act. The parties stipulated that the Union is a labor
ees in the exercise of the rights guaranteed organization within the meaning of Section 2(5) of the
them by Section 7 of the Act. Act.
WE WILL offer John Swigert immediate and
full reinstatement to his former job or, if that n. THE EVENTS
job no longer exists, to a substantially equiva- King Trucking Company transports coal and sand.
lent job, without prejudice to his seniority or Gary King, president of the Company, owns 70 percent
other rights and privileges previously enjoyed, of the stock, and his father, Meade King, owns the rest.'
and WE WILL make him whole for any loss of They own 10 Mack trucks and employ 10 drivers.2 The
pay he suffered as a result of the discrimina- Company transports coal exclusively for Madison Coal
tion practiced against him, plus interest. Company which contracts to buy coal directly from coal
mines and then, each morning, directs King where the
~KING TRUCKING COMPANY „coal is to be picked up.KING TRUCKING COMPANY Drivers come in about 8 a.m., receive their assign-
DECISION ments, go to the sand pits, load, and go to Lexington or
London, Kentucky. They unload the sand and go to the
STATEMENT OF THE CASE coal fields east of Lexington to load coal. They drive to
the Madison Coal Company in Cincinnati, dump the
JAMES P. TIMONY, Administrative Law Judge: These coal, and return as late as 10:30 p.m. to the King Truck-
consolidated cases were heard in Cincinnati, Ohio, on ing Company
February 19 and 20, 1981, upon the complaint of the The drivers are paid 25 percent of the gross revenue
General Counsel issued June 26, 1980, based upon the TchargeGeneral Counsel issued June 26, 1980 , 1980, based upon the received by King for each haul of sand and coal. On
charge filed on May 16, 1980, by James Morgan and the some days Madison Coal Company has not contracted
amended consolidated complaint issued July 23, 1980, for enough coal to fill all of the trucks King then allo
based upon the charge filed by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On
17, 1980. some days the drivers haul only sand and come back
The complaints allege that King Trucking Company empt
unlawfully discharged three employees, John Swigert, In February 1980, a union3 started an organizing cam-
James Morgan, and Ernest Centers; coercively interro- n at the Ki Trucking Company. The drivers
gated and threatened employee Ernest Centers; promised sign authorization cards, and the union filed a
employees additional benefits if they would forego sup- representation petition on February 26, 1980 The parties
port of the union; withdrew company credit cards from entered into a Stipulation for Certification Upon Consent
employees because of their participation in the union or- Election which was approved by the Regional Director
ganizing campaign; and that Respondent's agent/- of Region 9 of the National Labor Relations Board on
supervisor, Tom Combs, assaulted an employee because Rg Rsupervisor, o o bs, assaulted an e ployee because April 18, 1980. The results of the election were five
of that employee's support of the union. At the hearing, Apri 8, 1980. The results ag the uel ion and six
aticoercively votes for the union; no votes against the union; and sixanother allegation added is that Meade King coercively challenged ballots The RegionalOffice resolved three of
threatened employees with plant closure if the union wasselected as the employees' collectivebargaining r - these six challenges, finding that their ballots should notselected as the employees' collective-bargaining repre-sentative. be counted. Since the remaining three challenged ballots
espndent, in the answer, adts jstn bt would not affect the outcome of the election, the union
Respondent, in the answer, admits jurisdiction but was certified as the exclusive bargaining representative
denies the commission of any unfair labor practices. Re- of the truck drivers on May 27, 1980.
spondent contends that the three named employees vol-
untarily quit their jobs and denies that Tom Combs was
a supervisor under the law.
Upon consideration of the whole record, and my ob- Meade King is not in the management of the Company.
servation of the demeanor of the witnesses, I make the ' King also leases about 30 trucks from owner-operators and, acting as
following: a broker, leases the trucks to Madison Coal Company.
' Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an af-
filiate of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.
er . JURISDICTION

,
ult i n the ti
t r i l i , .
WE WIL NO in ny lke orrelaed mnner it fi t t it is l r i -
I i oremly , ( ), ( ) f
i
"- T H E
'
KING TRUCKING coal
^ .
t is l i i i ti, t
. =
comand
Febuar 19and20,198, uon he ompain ofthe ing Company.r ry 19 and 20, 1981, upon the co plaint of the The drivers are paid 25 percent of the gross revenue
r l l issued June 26, 1980, based upon the received by ing for each a l f s l.
r fil 16, 80c Ja es r uJl ne 2 19 so e days adison Coal Co pany has not contracted
c s li t co plaint issued July 23, 1980, for enough coal to fill all of the trucks. King then allo-
s t charge fle by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On
17, 1980. ae t so e days the drivers haul only sand and c e ac
ll t t i r i t
l f ll , e t r , i i i
r i l In F u 190 a r i . ri r
i t ri ti , t i fil
i l fi nt ti ti r , . rti
t i nt i l ti rti i ti t
i rti ti i entered into Siu r t i l ir t r
i i i ' t/ E lcion w a v t ti l Labor elations Board on
r i ult l of gg 9Qof ^ l t
r i t ri , il J , . r s lts of the lecio wer fi
t r ll ti i t t i rci l vegainstite uniolved six
c b T R O rl t of
l l ' ll ti - r i i repre- t s six chalenges finding that their ballots should not
sentative. be counted. Since the re aining three challenged ballots
Respondent, in th nwwoul l ti ,
s t, i t r, it j ri i ti t ti i t l i i i ntativ
i f f ir l i . t t ri r , .
l
ril i i
r i
i ti > e i t t t .
r ti t , t ti s

I
t
l l
l
KING TRUCKING COMPANY 727
A. Tom Combs'Assault he said, "Well, you and the God damned Union are
The most dramatic incident in this case involves a going to break this trucking company." And I said,
fracas between Tom Combs and John Sigert on March "I don't have any more to do with the Union thanfracas between Tom Combs and John Swigert on March
24 1980n. anybody else around here, Mister." And he said,
Tom Combs had leased a truck to King and had "Well, you're fired." And I said, "Well, if I'm fired,
worked part-time as a mechanic for the Company for pay me so I can go on home." He said, "I'll do just
several years. In January 1980, King had just purchasedthat
five new Mack trucks, at $75,000 each, and hired Combs5 , 00 Combs then went into the office to call Gary King. He
as a full-time mechanic. In March 1980, the trucks were diad th e telephone. e icked u a tire hamer an hit
breaking down due to the drivers' failure to perform rou- dialed h e elehne e pked up tie hammer an hi
tine maintenance and because the trucks were being it on a bench while he talked on the phone. After he
driven overloaded over rough roads. Gary King told the hung up the telephone he came back toward Swigert and
drivers that he had authorized Tom Combs to report any said, "You come in in the morning and get your money.
further instances of breakdown due to driver negligence, It will be here. Swigert testified that Combs then threw
and King said he would discharge the driver. Combs ap- the tire hammer underneath a truck and hit the wall with
parently was the only employee in the office after the a terrible "ppet." Arguing resumed and with both
trucks had gone on their daily journey, and he answered screaming imprecations Combs reaffirmed his point of
the telephone in the office in Gary King's absence and view by jabbing his finger into Swigert's chest. Swigert
took messages. He recommended two drivers who were finally pushed Combs hard with a blow similar to a
employed by the Company. Gary King admitted on the straight arm in football, mashing Combs' mouth. Swigert
witness stand that Tom Combs was in charge when he left to go to his car. Combs followed him into the dark
was away. In fact, King told several of the drivers that yard and Swigert testified at the hearing as to what next
Combs was "road boss" and that Combs could fire them occurred:
if they mistreated the equipment.' And I saw a shadow and I threw up my hand and a
About 10:30 p.m. on March 24, 1980, the drivers were shovel come across my arm and nearly broke my
returning to the yard at King Trucking Company. John arm and stuck in my head. And I went down in the
Swigert, a driver for King for about 2 years, helped an- rocks and he hit me again, flatways, right about the
other driver back his truck into the yard. Swigert then ear with the shovel. And then he hit me in the
approached a group of other drivers, joshing how he back. I was down in the yard bleeding and getting
was going to have to conduct lessons in driving. At the fainty. And I hollered for help and nobody come.
same time, Tom Combs approached the group to find the nd my car was sitting there running with the door
root of the hostility recently shown to him by some of open. And I crawled in it. Someway I got up to
the drivers. He asked one of the group, John Keeler, Buns' Truck Stop and somebody called the Law
whom Combs had considered to be his friend, why the and the ambulance. The blue lights was everywhere
drivers had not been talking to him. Combs said that if it in the-and they took me to the hospital.
was related to Gary King giving him the authority to
report abused equipment, he assured them that he would Two days later, when word of the altercation had
confront the driver with the facts before taking him into spread, the drivers met at a truck stop for coffee before
the office and reporting the matter to King. At that point proceeding to pick up their load. Driver Ernest Centers
Swigert joined the group and asserted that Combs would called Gary King and wanted him to come to the truck
not take him into the office. This lead to an escalation of ut King declined and said that theystop to talk about it. King declined and said that they
heated threats. Combs testified that Swigert said that he would discuss it on the following day. Instead, however
did not like working for Gary King and that when he the drivers returned to the company yard. As Centers
left he was going to make sure King was out of business. was getting his equipment out of the truck, Gary King
Combs said that he then called Gary King on the tele- saw a baseball bat in the cab of the truck. He grabbed it
phone and recommended to King that Swigert be dis- and ran to the office to call the police.
charged because he felt that Swigert was threatening the
livelihood of all of the drivers. Swigert, however, gave a B. Promising Benefits To Forego the Union
different version of what happened.5 He testified that the
following dialogue occurred: After the police arrived at the company yard, they ad-
I said, "Are you firing me?" I said, "Am I fired." vised the drivers to go home. First, however, Gary King
He said, "Yeah, if I say you're fired, you're fird, invited the drivers into his office individually to discuss
buddy." I said, "Well, why are you fiing me?" And the affair. Later, he addressed a group of drivers in the
yard again asking about their grievances. They told him
Ernest Centers' testimony on this point was corroborated by driven that they were afraid of Tom Combs, and that they
Otis Mefford and Ritchie Smeal, neither of whom is now employed by wanted health insurance and "show-up" pay (a $10 pay-
King and therefore they are without bias. Respondent did not call other ment to each driver for appearing at the company yard
employees who were present during this conversation on days when King had nothing to haul). King had re-
' I find from my observation of the witnesses that Swigert's testimony ceived legal advice and told the drivers that, because of
as to the reason he was fired is more accurate. Combs appeared to be a the union organizational campaign, he could not make
combative individual and was not a trustworthy witness. He appeared to
be willing to give whatever testimony might help the Company's cause, any promises but he implied that the demands were rea-
whereas Swigert appeared to be a relatively sincere witness. sonable. He told the drivers that he could not discharge
lt i
ti t i l i
to b r ea k t h i s tr i c y." I said,
t i rt arch"
t v e an re t o d o ith t h e n
o n th an
, . l r , i t r. i ,
s l s a tr t i
e ll, 'r fir ed . A nd I said , e l l , if I' fi
r ed ,
i f s I c on ho e." e said, "'111 do just
sed t h a t
t .
i i C o m b sl t h ent wep t n ton t h e o f fi c e t o c a" a r y K n g . H e
r i t t ri r ' f il r t rf r di a le dona benchwhile e talked u p th p one. afe e
i i t i hun ua l
sid "p t h e rt
*^ T" ln t h e t
i li , It
w ill be r ." i rt t tifi t t o bs then thre
i r. t ll
tl l
a t i l ri pet." r i r it t
i il i i r ti r ffir is i t of
i ' v ie w j i i fi r i t i rt' t. i rt
. r it l i il r t
i ll i
t l
r l ti ri
l
f ' I I t r
: . . , l rl
i i
i t, i f i t r , l i , l , i t
i i tr i t t r . i rt then ear ith the shovel. And then he hit me in the
i , j i . i t l i tti
i t t t l i i i . t l .
ti , r t t fi t A i i i
r t f t tilit r ntl t i
t ri r . t , l m ' l
i r t i f i , t . r r
i t t l i t i i if i it l.
t rit
r rt i t, r t l l l ti
fr t t i it t f t f t i i i , i f
t ffi r rti t tt r t i . t t t i t r i t i t ir l . i r t t r
i rt j i t rt t t l ll i i
. l ti s tut it. l i
t t r t . t tifi i t i i i r,
i t li i i i
l t i t r i t i . i
o bs said that he then c ll r i t t l - a ball t i t t
g t ha t S e r t b e
li li ll f t i . i rt, r, . ising fit rego t u i
i " ti
t
i re i ir
i e f r ire
n v it d th v e r in to i s o f
fi c e i i i ll t isc ss
i ll iri f i
r i i t t ir ri . t l i
r st t rs' t ti t i i t rivenr
t h t
ll
r t ri t is c ersati . a s e ing had nothing to haul). ing had re-
f
t r fir is r r t . s appeared to be a t e Union Organizational Ca paign, he could not ake

i ti l ' ,
1^
h
inga
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Combs because of the union campaign but that Combs Centers later saw driver Jim Hudson at a truck stop and
had no power to fire Swigert and that Swigert was not admitted to him, "I'm kind of in a way sorry I quit."8
fired. King also said that he would see that Combs James Morgan was one of three substitute dirivers
would not hit anybody else, and the drivers said that was who had worked for King Trucking when regular driv-
what they wanted and they left and returned the next ers were unavailable. Since Morgan did not have a tele-
day for work. 6 phone at his home, his practice was to call King when
he wanted work. Morgan had worked for King on 2 pre-
C. Discharge of Swigert, Centers, and Morgan vious days, on March 14 and 23, and he asked Gary
King to work on March 26, 1980, the day of the baseball
The day after the altercation, Gary King tried to find bat incident. Morgan had not filled out an application
out what had happened. He asked the other three drivers b i M h n f ou an apivers.. the and had not been hired as o e o King's full-time drivers.
who d r they had not much bee When hereturned from they had ruck seen becausethe other
the yard was dark and they had not heard much of the drivers to protest the altercation, he was invited into the
dialogue between Combs and Swigert. King tried to call office and Gary King asked him why he had returned to
Swigert on the telephone, but he got Mrs. Swigert and the yard. Morgan said he wanted something done about
she said she did not know what had happened. King told Combs. King told him to turn over the key to the truck.
driver Jim Hudson, who was Swigert's friend, to see Morgan asked if he was fired and King said, "No." He
Swigert and tell him he was not fired. Swigert did return left the yard and did not return.
to vote in the union election at the request of the union
organizer but did not return to work as a driver because D. Coercive Interrogation of Ernest Centers
he felt that he had been fired and his lawyer told him to Ernest Centers testified that at 9 a.m. on March 4,
stay away from King Trucking Company.stay away from King Trucking Company. 1980, he was fixing a flat tire in the shop when Gary
Ernest Centers continued to drive for King for several 1 0 e w s h a a t he ew aKing came up to him and asked him what he knew aboutweeks after the incident involving the baseball bat. Cen- the n and rs ed ht i ing wanted to
ters received several fines for driving overloaded trucks know anything about the Union he should get everybody
in early 1980 and claims that King required him to con- together. Centers alleged that King said that he would
tinue to drive overloaded, and that he therefore had to find out who started it and fire them and if he could not
leave the Company. find out who it was he would fire everybody. Gary King
King had a policy that drivers should not drive the denied making this statement.
trucks overloaded because it is illegal and can damage Based on their demeanor and their whole testimony I
the springs and other parts of the truck. Scales are locat- find that Gary King's denial of this allegation is more
ed at the tipple of the coal mine where the trucks are credible. The evidence shows that King was receiving
loaded, but, since they are paid on a percentage of the competent legal advice-which he followed-not to
weight of the load carried, some drivers did drive over- mention the Union to the employees.9 Further, other
loaded and King formerly had paid the commission even drivers testified that King had not interfered with their
on loads exceeding the legal limit. After he bought the rights to vote in the Union.
new trucks, however, King told the drivers that he
would pay the commission only up to the legal amount. E. Withdrawal of Credit Cards
This policy was posted on the bulletin board in the King Trucking Company provided a credit card kept
office. King Trucking Company provided a credit card kept
.~~offi~ ~~~~~~ce~. ,. ,, . in each truck so that the driver could use it to pay the
About May 1, 1980, King's orders to transport coal tolls on the highway. During the spring of 1980, Gary
dropped off drastically. Gary King told Centers that, al- King noted that his bill for tolls had increased S200 in 1
though there would be no coal to haul for a while, he month and that the receipts showed that unauthorized
could haul sand. Centers said that he could not make a automobiles and trucks were being checked through the
living that way. Centers claims that he called Gary King toll booth on the credit cards. He therefore removed the
on the night of May 15, 1980, asking for work and that credit cards from the trucks for 2 months and gave the
King told him he would have to haul sand overweight drivers cash for the tolls. There is no evidence that the
and that he refused and that the next day he went and credit cards were intended as a prequisite, nor that the
applied for workmen's compensation, stating that he had temporary discontinuance had anything to do with the
been discharged for failure to carry more than the legal Union
weight. An unemployment insurance examiner for the
State of Kentucky, Stephen Schultz, testified that he F. Meade King's Threat
asked Gary King whether this was true and that King
replied that Centers could come back to work under the During the testimony of driver Otis Mefford, he stated
same conditions as he worked before. Since I find that that Meade King said that there would not be a union at
King had a policy against driving overweight, this offerK ing had a policy against driving overweight, this o ffe r aThis testimony was technically hearsay elicited through driver Jim
meant, in effect, that Centers had not been discharged. Hudson. Ernest Centers was in the courtroom, however, and heard the
testimony and later testified on rebuttal and denied the statement. By
" Otis Mefford generally corroborated Gary King's testimony as to their demeanor, I believe Hudson to be the more credible witness.
what was said on this occasion. * Otis Mefford and Jim Hudson-both believable witnesses-corrobo-
'The president of the coal company, James Hatfield, testified credibly rated King's testimony in this regard, directly contradicting Ernest Cen-
about this decrease. ters.
.

i
The day after the altercation, Gary King tried to find , , t t ll
ft r t lt r ti , ar i trie bat incident. orgn had not filled out an application
. s they n er t e mch ecus t ee hired as one of ing's full-ti e drivers.
ha been the e, but t t seen s e he returned fro the truck stop with the other
t r r t a t ear c f t e drivers to protest the altercation, he as invited into the
t i rt. i tni t ll ffice ar ing asked hi hy he had returned to

.
en .

E e t c n e . s lf d t h a 9 a - 1 ° M r 4
y from cki mpany.1980,
Kin ca e up to hi a a sk e hi what h e n abu, . .. .., . . ,, , „ , . ,
t t i i t i l i t ll t. t U C r t if K
t i g
i l

it l i . i
l t ri t e ie aking this state ent.
i
9

is li s t t ll ti r i t i k a
i r i r it car e t
office. , ., . „,,,, „. , A b o u t 1, , ' i . .
.I $
t t
t
li i t t . t l i t t ll r i toll t on the credit cards. e therefore re oved the
t i t , , i t t
. t t t
'
t rr re t a the legal nion
.
t h e .
t h a t M e a d e sa d t h a t th e r e w o u ld n o t b e a n a t
i a a policy against driving over eight, this offer------
f t i . s s r est enters as in the courtroo , ho ever, and heard the
sion.*I
The
ed
a

,in
. .. , -
KING TRUCKING COMPANY 729
the Company and that "he would close it down and go 9. Meade King did not threaten to close down the
back to Tennessee." This statement responded to a lead- shop if the employees formed a union.
ing question, and was unadorned by details as to where
and when it occurred as well as any information about Discussion
any other witnesses who heard the statement. ' The alle- In deciding whether Respondent unlawfully dis-
gation was not in the complaint and Respondent was notgation as t in the c lai t a espondent as t charged John Swigert, there are three issues: (1) whether
prepared to defend against it and had no duty to probe Tom Combs was Respondent's supervisor, (2) whether
for further detail. Furthermore, while Meade King is a Swnd (3) what was the
Swigerm was discharged or quit, and (3) what was thestockholder in King Trucking Company, there is no motivation for the discharge.
record proof that he has any management function, nor The National Labor Relations Act defines the term
that he had the power to close down the Company. "supervir," 29 U.S.C. §152, as follows:"supervisor," 29 U.S.C. §152, as follows:
ill. CONCLUSIONS1III. CONCLUSIONS The term "supervisor" means any individual having
1. Ernest Centers, a claimant in this proceeding, was authority, in the interest of the employer, to hire,
not coercively interrogated concerning his union sympa- transfer, suspend, lay off, recall, promote, discharge,
thies by Gary King, president of Respondent, on March assign, reward, or discipline other employees, or re-
4, 1981. In addition, Centers was not coercively interro- sponsibly to direct them, or to adjust their griev-
gated by Gary King concerning which employee initiat- ances, or effectively to recommend such action, if in
ed the union campaign. connection with the foregoing the exercise of such
2. Respondent, through Gary King, did not on March authority is not of a merely routine or clerical
4, 1980, threaten to discharge the employee who began nature, but requires the use of independent judg-
the union campaign. Furthermore, Gary King did not ment.
threaten to fire all the employees if he could not find the
particular employee who began the union campaign. The fact that Combs was authorized to discharge em-
3. Respondent employed Tom Combs as a full-time ployees, without more, is sufficient to show that he was
mechanic in January 1980. Combs' duties included re- a supervisor within the meaning of the Act: ". . . [The
pairing Respondent's equipment, recommending prospec- possession of any one of the authorities listed [in that
tive drivers for employment, reporting to Gary King any section] places the employee vested with this authority in
abuse of the equipment, discharging employees for such the supervisory class. Ohio Power Company v. N.LR.B.,
abuse, and answering the phone and being in charge 176 F.2d 385, 387 (6th Cir. 1949). Since Tom Combs was
when Gary King was not on Respondent's premises. authorized to discharge employees, he was a supervisor
4. Tom Combs was a supervisor for King Trucking under the Act.
Company. Furthermore, even Gary King testified, in effect, that
5. Respondent discharged its employee, James Swigert, Combs was authorized with the power effectively to rec-
on March 24, 1980, for union activity. ommend the discharge of an employee; Combs is, there-
6. Respondent, through Gary King, did not promise fore, a supervisor within the meaning of the Section. El-
additional insurance and showup pay to its employees on 345 F.t2d 460 (7h Cir. 1943 N B 811, 8 16 d196 3)i enfd.
March 26, 1980, and did not threaten the employees that 34 5 F 2d 4 60 M7t h Cir 196 5) .R And, t w o disinterested
the Union would never represent them. On March 26, witnesses, Otis Mefford and Ritchie Smeal, testified that,the Union would never represent them. On March 26, after the drivers complained o King about Tom Combs
1980, Gary King told a group of employees that he aft e r th e drvers complaied to Kig about Tom Combs
could not discuss the Union with them nor offer them hitting John Swigert with a shovel, King said that, al-
additional benefits because of the union election. though he could not discharge Combs because of the
union campaign, he would see that Combs was no longer
a "foreman" or a "boss," thus implying that Combs hadclaimant herein, but Morgan voluntarily terminated the in fact been a supervisor when he discharged Swigert.
in fact been a supervisor when he discharged Swigert.
arrangement ha e ehad with Respondent. James Morgan Tom Combs appears to have an irascible nature. Hiswas not a full-time employee with Respondent, but only dominant motive for discharging Swigert, however, was
a "fill-in" who would temporarily drive when another d om n a n t m o t iv e fo r discharging Swigert, however, wasadriver c ould no work.uld torgarly drive whfor Reson Combs' prejudice against the Union, expressed in his re-driver could not work. Morgan only drove for Respond- sponse to Swigert's question why he was being fired.
ent on 3 days, never filled out an employment applica- This animus was lso indicat y he was being fired.
tion, and was not an employee of Respondent. This amus was also dicated by his treatment. One night 2
o. RespondAnt .id not discharge Ernst- . <". . i-ut Hudson, a leader of the union movement. One night 28. Respondent did not discharge Ernest Centers, but weeks after Swigert was discharged Hudson was park-
Centers voluntarily terminated his employment with Re- ing his truck in the company lot when the rear end of
spondent. When Centers asked Gary King if he couldspondent. When Centers asked Gary King if he could undethe truck caught fire. He ran into the shop for a hose toreturn to his employment, King said he could under the put out the fire and Combs began to curse him, and,put out the fire and Combs began to curse him, and,previous conditions but King did not say that Centers pointing his finger at Hudson told him "You al-
had to haul illegal overweight loads of sand and coal as
a condition of reemployment.a condition of ree ploy ent. " Since I find that Combs was a supervisor, there is no need to decide
whether Combs acted as Respondent's agent.
'1 Although Otis Mefford was a trustworthy witness, I am not required " Respondent's argument that Combs could not be a supervisor be-
to find as a fact everything he said. Edwards Transportation Company, 187 cause he was allowed to vote in the union election is without merit.
NLRB 3 (1970), enfd. per curium 437 F.2d 502 (5th Cir. 1971). N.LR.B. v. Elliott- Williams Ca. Inc., 345 F.2d 460, 463.
" 0
ti l i t t~
n d c d n h t e P" 1 "aflyds
gatin wa no in he omplint nd espoden wasnot charged John Swigert, there are three issues: (1) hether
r r t f i t it t t r T o s R es e se r sr ," ( ) w h et h e r
f r f rt r t il. rt r r , il i i ietw s d a rgd o quit, a2) heths t ~~o l d e t^ ^ ^ Company thereiger Ia no Shor gd e l t n d (3) h a t a s t h et l i i , iaonfrtedshg.
r r r f t t t ti , i
t t t r t l t . u ervis o r a sf ll s:* * *~~~~~~~~~"supervisor,"
I - . .„*., ,he ter "supervisor" eans any individual having
,

,
T h e c t
.
a ]
i t t
. . .,
17 6 38 5 387 6t h
u n d e r t h e A c t .
.
. o m b s w a s
, ,
. t, t f o r e , a s u pe r v iso r w i t h in i
n g o f t h e ec t io n . E l
i l hot^-Wilhams Co. Inc., 143 LR , (
) , e n fd
.2d ( . ) 2 A n d t i i t t
l r nt , itness s, tis efford an itchie eal, testified that,
t i plain in
l t t g J o h n ig er t w it a l, i sai
d t t, l-
i l fi l ti . t h o u g h h e c o u ld o t i r f t
7. Respondent did not discharge James Morgan, a i , l t t s longer
, t
cl i t r i , t r l t ril t r i t t i f t e n as o r h h ar i t.
arrange ent he had ith Respondent. Ja es organ To o b aper to h discible Swtge.
s t a f ll-ti e ployee it s t, t ly T o m C o m b s ppoief t o h a v e aS ir asct b l e na t urev H s
"fill-in" l t r ril ri t r dCombs'prj uotive for i r i i rt, r,
i l l d- s ' prejd.c against the Union, xpressed in his re-
l t l t applica-
sp o n se t o Swigert's question why he was being fired.
f t. a
T h is a ni m u s w a s a ls o indicated by his treatment of Jim
ton, andwsa n emp loe ofa Resp nenti. .
Resvpuondnt did nterm diatedhargee es t Centewirs ,but weeks after Swigert
w as d i sc ha r g e d , Hudson as park-
Centrs olutarly trmi te hi empoymnt ithRe- ing his truck in the company lot when the rear end of
pnet.We "ter s hr f ^ ^ ^^ t holSspond t. hen te e r i the
, otthfieadCmsbgnocrehmn,
^Tous~~~tdS ~ urK^ ̂^^^~~P"« ,-t i ^ i . ,previous c iti s t i i t s t t t rs nighsfgeatHdnolhm,"uan'al
l l l i l
iti loyment.c ,-. „.a*condition of reemployment. 1" Since I find that Co bs as a supervisor, there is no need to decide
0
1
r
, . .
e n t er i r,"
rged
^ ^
e an
. .
par
s vduent o m satred Eem s Cent e wisbut discharged,

i ler w as icare
^d0 1 11 " ^ ^ - t h e re ~~~Swger gs » m i rdisha ge. ^qut
e
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowed in the shop." Combs told driver Richie Smeal, worth Company, 90 NLRB 289 (1950), and Florida Steel
"I've got nothing to say to you, Richie. I'm talking to Corporation, 231 NLRB 651 (1977). See, generally, Isis
him." Richie Smeal was one of two drivers working for Plumbing & Heating Co., 138 NLRB 716 (962)
King who did not participate in organizing the Union. Upon the foregoing findings of fact, conclusions of
When Respondent's employee Tom Combs, acting as a law, and the entire record, I hereby issue-pursuant to
supervisor, told John Swigert that he was discharged,"3 Section 10(c) of the Act-the following recommended
and a motivating factor in that act was Union activity order.
protected by the Act, the burden shifted to Respondent
to show that the discharge would have occurred even in ORDER"S
the absence of the protected activity. Wright Line, a Divi-
sion of Wright Line, Inc., 251 NLRB 1083 (1980). Re- The Respondent, King Trucking Company, Burling-
spondent offered no reason to justify Swigert's discharge. ton, Kentucky, its officers, agents, successors, and as-
Respondent, in fact, denies that Swigert was dis- signs, shall:
charged. The point having been emphasized with shovel 1. Cease and desist from:
blows, I believe that Swigert acted reasonably in think- (a) Discharging employees because they have engaged
ing that he had been discharged"4 and that Respondent in protected concerted activity.
had a duty clearly to demonstrate to Swigert that he had (b) Discouraging membership in the Union, or any
not been discharged. Gary King's inconclusive call to other labor organization of its employees, by discriminat-
Mrs. Swigert to find out what had happened, and his use ing against them for engaging in protected concerted ac-
of Jim Hudson as an emissary, did not, in my opinion, tivity.
fulfill this obligation. King saw Swigert at the election (c) In any like or related manner interfering with, re-
on April 28, 1980, and could have made clear his intent raining, or coercing employees in the exercise of the
at that time. He testified that he saw Swigert on his lot ri guaranteed under Section 7 of the Act.
at the union election but said nothing. That is not in my ghts garantee uner et te Act.
estimation a good-faith repudiation of Combs' reprehensi- 2. Take the following affirmative action which will
ble conduct or adequate reassurance that Swigert's job effect the policies of the Act:
was still available. (a) Offer John Swigert reinstatement to his former po-
sition and make him whole in the manner set forth in the
CONCLUSIONS OF LAW section entitled "The Remedy."
1. Respondent is an employer engaged in commerce (b) Preserve and, upon request, make available to the
within the meaning of Section 2(2), (6), and (7) of the Board or its agents, for examination and copying, all
Act. payroll records, social security payment records, time-
2. The Union is a labor organization within the mean- cards, personnel records and reports, and all other re-
ing of Section 2(5) of the Act. cords necessary to analyze the amount of backpay due
3. Respondent, by Tom Combs, violated Section under the terms of this Order.
8(a)(l) and (3) of the Act by unlawfully discharging em- (c) Post in its office and provide each of its driver em-
ployee John Swigert as a result of his activity on behalf ployees with a copy of the attached notice marked "Ap-
of the Union. pendix." 16 Copies of said notice, on forms provided by
4. Except as found above, Respondent has not engaged the Regional Director for Region 9, after being duly
in other unfair labor practies as alleged. signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
THE REMEDY thereof and be maintained by it for 60 consecutive days
Having found that Respondent engaged in certain therefter, in conspicuous places, including all places
unfair labor practices, I find it necessary that it cease and where notices to employees are customarily posted. Rea-
desist therefrom and from any like or related conduct, sonable steps shall be taken by Respondent to insure that
and to post an appropriate notice, attached hereto as an said notices are not altered, defaced or covered by any
Appendix. other material.
Moreover, Respondent should make whole employee (d) Notify the Regional Director for Region 9, in writ-
John Swigert for any loss of pay as a result of the dis- ing, within 20 days from the effective date of this Order,
crimination against him, and offer him immediate and full what steps Respondent has taken to comply herewith.
reinstatement to his former position of employment or, if
that position no longer exists, to substantially equivalent In the event no exceptions are filed as provided by Sec. 102.46 of
employment, without prejudice to his seniority or other the Rules and Regulations of the National Labor Relations Board, the
rights or privileges previously enjoyed. Said backpay is findings, conclusions, and recommended Order herein shall, as provided
to be computed in the manner prescribed in F. W Wool- in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
" Jim Hudson, a driver presently employed by King and generally a " In the event that this Order is enforced by a Judgment of a United
believable witness, testified that Combs told Swigert: "You're fired. Get States Court of Appeals, the words in the notice reading "Posted by
off the damn lot. You're fired." Order of the National Labor Relations Board" shall read "Posted Pursu-
" Swigert testified that he applied for unemployment compensation on ant to a Judgment of the United States Court of Appeals Enforcing an
the basis of having been fired. Order of the National Labor Relations Board."

.

). e-_
,.

i i t t t -
i i i , ti it .
l ill .
st
t t t ti . ghts
2. Tak t n a a wi will
T a k e t h e f o l lo w n ill
e f e c t t h e li i t t:

l r t, i l
i ti . it t , f i ti i , ll
r ll i l urit t
c a r d s ,
c o r d s
.
X

w h e r e
l t , if
In ti r i . . f
Ot
O
n ri n . . l
n ec
.
10 2

o f t he R ul es a nd
l ti ,
L"

11
il
i ti ll
ti ry l